The Selangor state government has initiated the move by tabling the bill, we believe the other states should do the same, and the Federal ruling party should work towards having a FOI law at the national level. Share with us why you think we need an FOI legislation.

The Coalition of Good Governance (CGG) welcomes the Selangor State Government’s reform initiative through the tabling of the Freedom of Information Enactment 2010, the first such legislation in Malaysia. This is indeed a step in the right direction towards giving the people of Selangor the right to access public information.

The enactment seeks to enhance disclosure of public information for the public interest and to provide to every individual an opportunity to access to information made by every department of the State Government. This approach radically shifts the obligations to the state to make information available to the public and to not have unlimited powers to decide what information people can have access to as is practiced under the Official Secrets Act 1972.

We are aware of the challenges from within the State Government as faced by the State EXCO in tabling this enactment but at the same time we would like to congratulate them for pushing ahead with the bill, despite the fact that the proposed legislation lacks sufficient particularity and legislative intent to be reflective of a true freedom of information law.

The proposed legislation has been severely watered down and while it retains the name FoI in form, its substance needs to be reviewed. Civil society organisations have campaigned in the past for a good FoI, which should cover the following points:

1. Principle of Maximum Disclosure – access to information is a basic necessity and right, not a luxury

2. Routine publication – public bodies should routinely make available a wide range of information of public interest

3. Independent Administrative Oversight Body – to oversee the implementation of the law and to adjudicate appeals against refusals to disclose information. Members are chosen in a transparent manner with gender representation, it should be open and involve civil society

4. Promotion of open government – through adequate training, procedures for maintaining records and to make it a criminal offence to obstruct access to information

5. Exceptions – should be set out clearly and narrowly and should be limited to protection of legitimate interests. Information should be disclosed notwithstanding the requisite risk of harm where this in in the overall public interest

6. Processes and costs – law should set out minimum procedural rules and costs should be limited to the cost of duplication of the information

7. Open Meetings – law should establish a general presumption that official meetings are open to the public.

8. Secrecy laws and practices – the law should prevail in case of conflict between it and any secrecy law

9. Whistleblowers – individuals should be protected from any legal, administrative or employment related sanctions for releasing in good faith information on wrongdoing

10. Review of the law – the law should provide for its own comprehensive review

However the CGG notes with concern that the enactment has serious weaknesses that could jeopardize the spirit of the legislation, and we call for scrutiny of the act and propose that it be strengthened to reflect the true intent of any good FoI legislation. CGG has identified several areas that are problematic and will need to be reviewed.

1. Information must be a right of the individual – The enactment that was tabled proposes that every individual has the “opportunity” to access public information and Section 5(1) reiterates that “any person may be given access to information made by every department.” The provision does not entrench the right of the individual to seek and obtain information. Instead, the enactment is still premised on the idea that the Government owns information and allows people access to it, rather that the Government holds information on behalf of the people, who have a right to access it.

2. Exemptions are wide – The enactment sets out its limitations in reference to the Official Secrets Act and does not include bodies created by the state or that have a public interest function. This means a lot of private contracts that have a public interest will be excluded from the scope of the law. The law does not specify the test of public interest as a legitimate overriding principle.

3. Processes that could affect the exercise of rights – Several provisions make the law weak as they could potentially be abused to prevent the exercise of right to access information. For example Section 6(2)(d) requires the person requesting information to “state the reason and purpose for application”, which could disqualify people purely on the Information Officer’s judgement. The Information Officer can also be let off for not responding to requests within the stipulated time under Section 7 and that such non-communication should be assumed as rejection of application. The enactment also does not stipulate the costs of obtaining information and this is one of the easiest ways of keeping secrets.

4. Penalties -The enactment views penalties within the parameters of the potential abuse of the information. Section 15 considers it an offence when someone uses information for reasons other than those stated in the application form when making a request, or if a person gives false information in the form. The law should instead protect the rights of people to make request and prevent obstructions to the public authorities from fulfilling their roles under the law and in preventing illegal destruction of documents.

5. Appeals body not clearly independent – While the law provides for the setting up of an Appeals Board, its members are appointed by the state ad the Chairman is given wide powers to make decisions. A good law will have selection criteria and the appointment process is open and transparent.

Based on our initial observations, we hope to engage with the Select Committee actively to express our views and recommendations. In this regard, CGG welcomes the setting up of the committee, to be chaired by Hulu Kelang state assemblyman Saari Sungib, and we believe the committee should have the powers and responsibilities to conduct widespread public consultation and to engage all stakeholders meaningfully.

CGG expresses concern over FOI Billby Meena L. Ramadas (theSun)
PETALING JAYA (July 22, 2010): The Coalition for Good Governance (CGG) has expressed concern over the Freedom of Information (FOI) Bill tabled in the Selangor State Legislative Assembly recently, saying it does not guarantee the public‘s right to seek and obtain information.

CGG Taskforce on the FOI Legislation Gayathry Venkiteswaran said they do not want this version of the law to be passed.

“It really needs to be strengthened in terms of its processes, rights framework, the appeals board — all of which are the fundamental principles of the FOI law,” she said.

She said the problematic areas of the bill are:

> Section 5(1), which stipulates that “any person may be given access to information made by every department”.

The CGG says this provision does not entrench the right of the individual to seek and obtain information;

> Wide exemptions, including limitations in reference to the Official Secrets Act (OSA).

The CGG says the bill only stipulates access to information kept by state agencies and departments and does not specify private companies or agencies that may carry out functions for public interests;

> The need for the public to justify reasons to request for information which is to be weighed by an information officer and the lack of specificity regarding costs to obtain the information. The information officer cannot be held accountable for not responding to requests within the stipulated time under Section 7 and such non-communication should be assumed as rejection of application;

> The penalties incurred if the information is used for other reasons than applied for or if false information is filled in the form; and,

> Lack of clear independence of the Appeal Board as its members are appointed by the state. The chairman also has the final say to approve or reject the appeals.

Gayathry said CGG welcomes the setting up of the select committee, to be chaired by Hulu Klang assemblyman Saari Singib, which the coalition hopes to engage with on the bill.

“We have sent him a letter to inform him that CGG would like to meet up with the select committee to discuss the process of what is going to happen in the select committee and our concerns with the law,” she said.

“We really hope they will be open to our recommendations and take our concerns seriously.”

When contacted, state executive councillor Elizabeth Wong denied CGG’s claim that the bill is a watered-down version of an FOI legislation.

Wong said it is futile for a state law to “stand alone” while contravening the federal laws as it would result in more disadvantages for the public.

However, she said, the process to enact the FOI law in the state is ongoing and the select committee will be engaging with the public, NGOs and experts to refine and enhance the bill.

“We are very open to suggestions, recommendations and ideas regarding the bill and I appreciate CGG’s comments,” she said.

The FOI bill was tabled in the state assembly last week and it has now been passed to the select committee to further refine the bill.

Saari said the committee will meet at the end of the month and is focusing on garnering opinion from specialised groups, including NGOs, academicians, state and federal agencies, to produce a revised version of the legislation.

PETALING JAYA: Selangor is the first state to table the Freedom of Information (FOI) Bill, but it has been “severely” watered down.

“It doesn’t truly reflect the spirit of the law,” says Gayathry Venkiteswaran, the head of the task force set up under the umbrella of the Coalition for Good Governance (CGG), a non-governmental organisation.

When Selangor mooted the FOI proposal, it was greeted with much enthusiasm. It was seen as a symbol of a new open and transparent government. The bill was tabled at the Selangor State Legislative Assembly on July 14 by Elizabeth Wong, the executive councillor in charge of consumer affairs, tourism and environment.

Speaking to reporters at the Petaling Jaya City Council recently, Gayathry said the watered-down version has serious weaknesses.

“We note with concern that the bill has serious weaknesses that could jeopardise the spirit of the legislation. We call for a scrutiny of the law and propose that it be strengthened to reflect the true intent of any good FOI legislation,” she said.

Open to potential abuse

Gayathry said the FOI bill had gone against its principles – ensuring maximum disclosure of information, routine publication of information, and the need for an independent body to monitor it.

“The bill that was tabled proposes that every individual will have the ‘opportunity’ to access public information but does not entrench the right of the individual to seek and obtain information.

“The bill is still premised on the idea that the state government owns the information and only allows people access to it instead of holding the information on behalf of the people, who have a right to access it,” she said.

She noted that there are several provisions in the bill which could potentially be abused to prevent the exercise of right to access information.

“One of the sections requires the person seeking information to ‘state the reason and purpose’ of his application. Now this means that he could be disqualified (from seeking information) based on the judgment of the appointed information officer.”

A-G an impediment

When asked why the FOI did not live up to the original draft submitted by the CGG to Wong, Gayathry said: “It is very clear that all parties, NGOs and the state government wanted the ideal proposal tabled. However, I dare say that the state legal advisers and the Attorney-General (A-G) have been an impediment in the tabling of the bill.”

“The state legal advisers should be responsible to the state and not to the A-G’s Chambers. This is our main concern.”

(The CGG draft was submitted in 2009 under the aegis of the task force.)

On whether the FOI contradicted the Federal Constitution, Gayathry said there are sufficient provisions to prove that the FOI is constitutional.

“ We don’t agree that based on federal law, this bill is unconstitutional as there are several clauses (73 ,74 and 77) which do support it. The argument used by the legislators who opposed this bill is based on the fact that it is against the Official Secrets Act (OSA).

“What we’re talking about here is information of public interest, which should be readily available except in certain circumstances that affect national security,” Gayathry added.

Gayathry, however, praised the tabling of the FOI Bill, describing it as a step in the right direction.

“The approach radically shifts the obligations to the state to make information available to the public and to not have unlimited powers to decide what information people can have access to as is practised under the OSA,” she said.

“We are aware of the challenges faced by the state excos in tabling this bill, but at the same time, we would like to congratulate them for pushing ahead with it…”

A great thing

Meanwhile, Petaling Jaya local councillor, Derek Fernandes, a lawyer by profession, voiced his support for the bill.

“The bill is really a great thing but it needs to be worked out properly. The Selangor government should be applauded for showing political will in tabling it. Hopefully, this will be followed by other states.”

“It now makes the federal government look bad as it had vehemently opposed the FOI Bill. This goes to show how much it fears an open and transparent government,” Fernandes added.

The Selangor government has set up a select committee chaired by Hulu Kelang state assemblyman, Saari Sungib, which will undertake research and public consultation on the proposed bill.

The panel will then table its findings and recommendations to the State Legislative Assembly for a third reading planned for April 2011.

The final bill will be the result of the combined efforts of the executive and legislative branches of the government and the people of Selangor.

Thursday July 15, 2010

Selangor tables freedom of information Bill

SHAH ALAM: The Pakatan Rakyat Government in Selangor created history yesterday by tabling its Freedom of Information Bill 2010 at the State Legislature to strengthen the people’s right to access to information.

As expected, the Pakatan assemblymen supported the Bill while Barisan Nasional assemblymen opposed it during the debate after the Second Reading of the Bill.

Earlier, State Executive Councillor for Tourism, Consumerism and the Environment Elizabeth Wong, who had tabled the FOI Bill for the First and Second Readings, said the new law when implemented would promote transparency and accountability in the state government.

“We encourage all Selangorians to take full advantage of their right to access information and to make government open and accountable. It is only through open government as well as a well-informed and empowered citizenry that democracy can be broadened and deepened in Selangor.”

She said the state government was tabling the Bill to “enhance disclosure of information in the public interest, to provide every individual with a window to access information made at local councils and departments at the state level”.

The Bill provides for one information officer for each state government department to guide the public in accessing the requested documents. The officer has to respond within 30 days, or seven days in the case of life-threatening situations.

Ismail Sani (BN-Dusun Tua) objected to the Bill, claiming it was not relevant and infringed on the Official Secrets Act (OSA) 1972 passed by Parliament.

“Selangor cannot table such a Bill, as certain information involves departments under the state that needs to obtain clearance from Parliament before it is declassified,” he said.

Sulaiman Abdul Razak (BN-Permatang) echoed the same sentiments, and warned that it could bring disaster to the state as political parties could use it for malicious reasons.

“All matters must be weighed carefully. We should not just come up with an enactment to project a transparent and accountable government, but which in reality would bring trouble,” he said.

The debate on the Bill continues today.

(The Sun)

Selangor tables FOI BillBy Maria J.Dass

SHAH ALAM (July 14, 2010): The Freedom of Information (State of Selangor) Enactment Bill 2010 was tabled at the state assembly today, paving the way for the public to access information at all state government departments.

Executive councillor in charge of consumer affairs, tourism and environment Elizabeth Wong, who tabled the bill which is a first in the country, said: “More than 80 countries have introduced freedom of information laws and we hope this move will improve the administration of the state because a transparent government is also one that will be more efficient and responsible.”

She said the proposed enactment will help reduce corruption and boost accountability in the state’s dealings.

The debate that followed, however, clearly showed a division of opinion among Pakatan Rakyat assemblymen who supported the bill but pointed out the need for some refinements, and the Barisan Nasional assemblymen who described the enactment as “toothless” and one that contravened the Federal Constitution and other laws.

After debate, the bill will go through public consultation, research and study via a select committee, which will table its recommendations to the assembly for third reading. This is expected to be completed by April next year.

These were the arguments today:

FOR:

Hannah Yeoh

> Hannah Yeoh (Subang Jaya):

The word “opportunity” to access information should be replaced with the word “right”. The definition of information excludes documents classified under the Official Secrets Act 1972. I hope this does not make the enactment redundant.

Exceptions should be made only if there are threats to health or safety of the state.

I laud the idea of oral information being released to those who are blind and illiterate as this espouses a caring government policy.

The 30-day time frame for information release should be shortened. Applicants for information should be told the status of their application even if it is rejected.

I hope the people in BN held constituencies will realise how much their assemblymen are opposing the right of the public to access information on how their money is being spent, and on the administration of the state.

They (the BN assemblymen) also fail to understand the enactment as they are talking about private pictures and videos being made accessible to all.

> Nik Nazmi Nik Ahmad (Seri Setia):

BN assemblymen should realise this is to their advantage as they now have access to documents and can use it to question us better.

The enactment seems to give the information officer more power compared to the information applicants and I hope that this can be exchanged.

The provision that states that the applicant can consider the application for information rejected if there is no response goes against the spirit of the enactment.

I hope the federal government will emulate us instead of classifying documents pertaining water and toll concessions that affect the public.

> Lau Weng San (Kampung Tunku)

There must be a limit to the amount of fees imposed on applicants.

There needs to be some refinements in terms of copyright issues – on the information receives and whether it can be copied and disseminated.

What about information that overlaps with federal agencies and ministries? Who monitors the information officers? What is the definition of documents that can be released? Does it include correspondence or minutes?

AGAINST:

> Suliaman Abdul Razak (Permatang assemblyman)

My BN colleagues and I think it does not comply with the Federal Constitution and the relevant laws. What is contained in this enactment can be disputed in court. It will be toothless in terms of punishment and action against those who go against the provisions.

If I bring up the intention of PR tabling this enactment, I will be accused of being afraid of my own shadow. What about the privacy of the people, what happens when their private pictures and videos are made accessible to all?

> Ismail Sani (Dusun Tua)

This enactment goes against the federal constitution and laws. It is a game played by PR to show they care about transparency. This is a waste of time because the Mentri Besar now has the power to declassify documents under Section 2(c) of the Official Secrets Act.

The appointment to the appeals board is also questionable as the people appointed are bound to be political buddies of those in power. — theSun